It's exceedingly unlikely that John G. Roberts has any skeletons in his closet. But the ghosts of Emmett Till and the Scottsboro Boys could soon come back to haunt him.

Although conservatives now have the upper-hand in his Supreme Court nomination battle, that could soon change amid disclosures--first reported by chimpstein.com website and then the New York Sun--that Roberts was an aide to Attorney General William French Smith when the Reagan Administration tried to restore tax-exempt status to racially discriminatory schools, including Bob Jones University, which at the time barred inter-racial dating.

It was Smith who convinced Reagan to reverse the policy, relying heavily on extensive legal analysis. All this militates in favor of the conclusion that Roberts played a central role here in the effort, ultimately rejected by the Supreme Court, to shower taxpayer largesse on those who manifested an inordinate fear of Jungle Fever.
(If Stanley Crouch knocks up Boyden Gray's daughter, perhaps under these circumstances John Roberts would support abortion. Is that what the Washington Post meant when they called him a pragmatist? Real photo.)

Yes, the Christian school's prohibition on the mixing of the races could soon become fodder for late-night talk show hosts when they learn that Roberts tried to help the Reaganites in their ill-fated effort, later rejected by the Supreme Court to shower taxpayer largess on those who have an inordinate fear of jungle fever. But the policy is actually quite pernicious; fear of mixing of the races was the catalyst for many lynching, the most notorious being the murder of Emmett Till after he was perceived as wolf-whistling at a white girl. And the notion that black men are sexual beasts prone to defile white Christian girls is also responsible for many travesties of the justice system, most famously the Scottsboro Boys case and more recently the wrongful conviction of a group of black teenagers-or "wolf pack" as the media called them-for gang raping the woman known as the Central Park jogger.

(Whoever lynched him presumably opposed inter-racial dating also, just like those fine Christian folks at John Roberts' favorite school)

The historical baggage is arguably one reason why the Reagan Administration ignited a nationwide furor when it moved in early January 1982 to change the IRS policy which dated to the first term of President Richard Nixon.

200 Justice Department employees in the civil rights division signed a letter expressing concerns about the decision, which the Supreme Court eventually rejected the following year in an 8-1 decision written by Chief Justice Warren Burger, a stalwart conservative.

To be sure, it's wrong to impute racism ipso post facto to anyone who supported tax-exempt status for Bob Jones University. The religious nature of Bob Jones University raises compelling First Amendment issues. More importantly, Congress never voted to deny tax-exempt status to racially discriminatory schools. It's therefore possible to reasonably contend, as the Reagan Administration did at the time, that the IRS usurped its authority with the anti-discrimination ruling.

In the years since the Bob Jones University, the Supreme Court has narrowed the right of the government to make tax benefits for institutions contingent upon the particular viewpoint they express. (That's why even Rudy Giuliani failed in his attempt to deny the Brooklyn Museum city funds because some of its exhibits were deemed anti-Catholic. And if liberals opposed that effort they seem hypocritical to support withholding tax support from institutions they find objectionable.

Conservatives could make the argument that the ban on inter-racial dating is an exercise in retrograde foolishness and bigotry, but the legal vagaries are such that the school can not and should not be treated differently than others simply on that basis.

Weyrich: The BJers Don't Pleasure Me

Paul Weyrich vehemently supported the John Roberts-William French Smith effort to restore tax exempt status to the Jungle Feverphobes at Bob Jones University.

But Weyrich, in contradistinction to most every other conservative in recent years, doesn't suck-up to BJU. For him, it's an issue of religious freedom.

"I supported tax exempt status on principle. If the position of the government determines who gets exempted, then one day soon in the next Clinton Administration my church will lose its exemption because we have no women clergy, not even altar girls. I have little use for Bob Jones but this was a terrible precedent to set."

The problems is they don't. Just the opposite. In the years since the controversy erupted, Republican politicians, most notoriously George Bush during his 2000 presidential campaign, have spoken at the school without taking exception to its longstanding policy. His brother Jeb defended him. And just last week, C. Boyden Gray, counter-point to Ralph Neas in the confirmation battle and White House counsel for the first President Bush, cursed and yelled at this reporter when asked his own position on tax subsidies for Bob Jones University.

"Goddamn it. I don't have time for this."

He might need to find some.

According to the New York Sun, the Reagan Library thus far refuses to make public the documents Roberts kept on the BJU matter when he worked for Attorney General William French Smith fresh out of law school. But nobody in Washington, not even the White House, can withhold documents from the public very long and it's a safe bet that Roberts handlers, will soon request that the documents be released.

Even before that answers may be possibly located in the long-forgotten 1984 Harvard University study about the Bob Jones matter which this reporter just identified in the course of researching this piece. "Ronald Reagan and Tax Exemptions for Racist Schools" by David Whitman for use at the Center for Press, Politics and Public Policy at the Kennedy School of Government.

But one of Reagan's biographers, citing the study, has written that Smith decided to support tax-exemptions for Bob Jones and another discriminatory Christian school based on "extended legal analysis."

Gee, who might have provided the analysis?

Messages left for a David Whitman (208-774-2956) who most likely did the above study were not returned yesterday.

But ultimately it's the responsibility of Roberts and his handlers, including the otherwise urbane C. Boyden Gray who took the Lord's name in vain last week when questioned by E. Lawrence Gahr, to provide answers.

Roberts can't dodge the issue with the standard excuse nominees offer that he can't discuss the matter because it might come before the Supreme Court. It already did, of course.

The big smoking gun in this case was supposed to be his writing that Roe v. Wade is wrongly decided and should be over-turned. But many legal scholars, including Ruth Bader Ginsburg, have questioned Roe and the plain reality is that Americans are deeply ambivalent about abortion. To claim that the policy is merely an expression of religious faith and any attacks on it would constitute religious bigotry would be hard-sell considering that BJU itself finally abandoned the plan, which is incongruent with any reasonable interpretation of Jewish or Christian teaching and an insult to Christians at the forefront of the battle for racial equality, most famously the kind of nuns who taught Clarence Thomas to Martin Luther King himself. It's also an insult to Jews, since prominent rabbis, both Reform and Orthodox were major players in the civil rights movement.

Roberts is a devout Catholic, which the right would normally use to deflect criticism of him as yet another example of bigotry against persons of faith. This argument, which normally puts liberals on the defensive, probably wouldn't be particularly efficacious in the realm of BJU because the school itself is notoriously anti-Catholic.

When Pope Paul VI died in 1978, the reaction from Bob Jones University chancellor Bob Jones did not quite sound like the tributes issued by most everyone upon the passing of his predecessor once-removed earlier this year.

"Pope Paul VI, archpriest of Satan, a deceiver and an anti-Christ, has, like Judas, gone to his own place.

Jones also expounded upon the more general attributed that any Holy Father must bring to the job. "A pope must be an opportunist, tyrant, a hypocrite, and a deceived or he cannot be pope."

Oy gevalt.

In any event, these kind of internecine battles among the goyim are likely to be over-shadowed by the racial context since race after all is the great American dilemma.

The Bob Jones matter has been fodder for liberals to impute odious racial views to the GOP for nearly 25 years-most recently by New York Times columnist Bob Herbert in his column, ironically enough, published the day before Roberts' nomination.

This is unfair given that the GOP policies, opposition to the legalization of homosexual matrimony and support for School Choice resonates with many blacks and often pits them against white liberals. Civil Rights icon Walter Fauntroy, for example, has played a central role in the effort to deny equal marriage rights to gays.

But history is history and now the GOP and conservatives have come face-to-face with the nation's past and their own. The plain reality is that many leaders and founders of the modern conservative movement, most notably Barry Goldwater and William Buckley, opposed the landmark civil rights legislation of the 1960s.

It was easy enough to drive Trent Lott out of office to atone for the original sins described above. That didn't change the power balance in the Senate. To unequivocally take exception to Roberts' complicity in the Bob Jones matter-even if that runs the risk of allowing liberal interest groups to run him out of town-would show real courage.

If the GOP and conservatives lack the moral fortitude to disassociate themselves from Roberts for emboldening purveyors of racist mythology how can they plausibly contend that racism was long ago extirpated from mainstream American society?

Hugo Black's Supreme Court nomination survived his salad days in the Ku Klux Klan. Roberts nomination could easily implode if he fails to follow Black's lead and renounce his shameful role in the advancement of KKK ideology.

Evan Gahr EvanGahr@aol.com, a former press critic for the late New York Post editorial page editor Eric Breindel, recently broke the story of a race discrimination lawsuit against the Washington Post. He has written for almost every major conservative publication.